Dr Raja Muzaffar Bhat
Union Minister of State (MoS) in the Prime Minister’s Office, Dr Jitendra Singh in July this year during a semi virtual regional conference titled “Replication of Good Governance Practices” said that more than 800 central laws have been extended to Jammu and Kashmir after the abrogation of article 370. The conference held in Srinagar was attended by 750 officers from almost one dozen states. It is impossible to analyse these 800 Central laws one by one, but the lax implementation of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act (RFCTLARR Act 2013), one of the most progressive laws relating to land acquisition, suggests that the Government is hesitant in giving the citizens of Jammu & Kashmir the benefits arising from progressive laws. RFCTLARR Act that was enacted by UPA- led Congress Govt in 2013 just before 2014 Lok Sabha elections.
The law was not extended to J&K nor did previous Govt’s in J&K enacted similar legislation inspite of my repeated requests and appeals through my series of columns from 2013 onwards. This law was made operational in Jammu & Kashmir with effect from October 31, 2019 when 1st order under J&K Reorganization Act 2019 was passed after article 370 was read down. The law in-spite of being extended to J&K around 2 years back, Government continues to acquire land and property by invoking the obsolete J&K Land Acquisition Act 1934 Samvat 1990. This law along with dozens of erstwhile J&K state laws were repealed through the same order passed on Oct 31st 2019 following the abrogation of Article 370.
Government is yet to hold training or orientation programmes for its officers in J&K who have to implement various central laws. Sub Divisional Magistrates (SDMs) and Assistant Commissioners of Revenue (ACRs) have been designated as collectors under the RFCTLARR Act 2013, but when the people go to these officers and ask them to apply this law they are reluctant to do so.
The Collector Land Acquisition Power Development Department Srinagar very recently refused to apply the Central act for land acquisition case wherein Govt has to pay compensation to the landowners whose land was used for setting up transmission towers and lines for Zainakote, Alesteng-Mir Bazar power transmission project. Although the Central act on land acquisition is very clear on making assessment of land and property in rural and urban areas, still collectors say Govt has not published rules. If for the argument we are made to believe that without publication of rules , the land cannot be acquired by Govt , whose fault is this ? Why shall poor land owners or affected parties be made scapegoats by the Government ? In-fact many states after implementing the Right to Fair Compensation Act in 2013 made its rules after 4 or 5 years. The state of Goa made the rules in 2019 , does that mean for 5 or 6 years the Govt in Goa applied the repealed Land Acquisition Act of 1894 ? No, that is not the case at all. RFCTLARR Act 2013 is very much clear on calculation of compensation and rules are not even needed by collectors. This is one of the tactics to avoid aggrieved land owners and farmers whose landed property comes under alignment of various developmental projects in J&K. Ironically, not only have collectors been preparing awards by using the provisions of the J&K’s repealed land acquisition Act, the Government, too, continues to issue notifications under the same repealed Act in many cases, depriving citizens of their right to fair compensation.
The road in Rajouri
Just 13 days before the extension of Central laws to Jammu & Kashmir, the Government issued a notification under Section 4 of the repealed J&K Land Acquisition Act 1934. This pertained to a piece of land measuring 37 kanal 14 marla in village Khadarian of district of Rajouri. The Govt is planning to construct a road in this area from Khadarian to Khah villages. The Revenue department issued notification on 18th October 2019 and the Central law i.e Right to Fair Compensation Act (RFCTLARR 2013) became applicable in J&K with effect from Oct 31st 2019. The section 4 of the repealed Land Acquisition Act of J&K corresponds to Section 11 of the central act (RFCTLARR Act 2013) and mandates the publication of a preliminary notification outlining the details of any land being acquired for a public purpose. 18 months later, on April 23, 2021, a notification under Section 6 of the J&K Land Acquisition Act was issued by Govt which stated that no objections had been received as against the section 4 notification. It went on to declare that, following the report of the collector, the land was being acquired for public use. I am sure the residents of this remote area of Rajouri would not have even gone through the newspapers that carried the section 4 notification. How could have they responded back ? Even the educated people are not well versed with land acquisition laws and that is why the land acquisition laws have provisions of mass awareness at local level but this is not at all followed. The villagers as per J&K Land Acquisition Act 1934 Samvat 1990 were supposed to be made aware through public outreach programmes and Govt is supposed to do the drum beatings in the village. There is a clear provision for the same in the repealed act. I am sure these legal provisions were not at all followed by the District Administration Rajouri particularly the then Collector Land Acquisition
Firstly, the notification issued under section 4 of the repealed J&K Land Acquisition Act is questionable in itself, as the same was issued almost immediately after Article 370 was abrogated. Starting October 31st 2019, the Fair Compensation Act (RFCTLARR Act 2013) would have been made operational in Jammu & Kashmir, bringing to question the Government’s hurry to issue a notification under a repealed law that the Government of India considered outdated. Had the government harboured sincere intentions to help the poor landowners and farmers of remote villages in Rajouri, it could easily have waited for 13 days and issued the notification after October 31, applying Section 11 of the Fair Compensation Act to facilitate the land acquisition for the PMGSY road project ?
This would have benefited the people as the Fair Compensation Act not only guarantees more compensation for acquired land, it also ensures rehabilitation and resettlement as well. The repealed J&K Land Acquisition Act 1934 samvat 1990 allows the State to acquire land after making a payment amounting to merely 15 percent of Jabirana (solatium), and to use the circle rate to make such calculation. In contrast, the Fair Compensation Act (RFCTLARR Act 2013) provides for 100 percent solatium, while also requiring that the State apply a rate that is double the price of the market value of the land.
Violation of High Court order
Aggrieved persons from several villages of Budgam approached the Jammu and Kashmir High Court earlier this year, contending that their land was notified to be acquired under Section 4 of the Land Acquisition Act in the year 2017, and that these proceedings have “lapsed” due to the efflux of time as per section 11B of the erstwhile J&K Land Acquisition Act 1934 Samvat 1990. The petitioners argued that neither was possession of the land taken from them, nor were they paid any compensation as a result of an award or under Section 17 of the J&K Land Acquisition Act. A Division Bench of the High Court of Jammu & Kashmir, in June this year headed by Chief Justice in the matter of Ghulam Ahmad Paul and others vs UT of J&K issued notice in the petition, and in the interim order directed for the maintenance of ‘status quo’ with regard to the possession of the land from being acquired for the construction of Srinagar Ring Road in central Kashmir’s Budgam district. After 5 months on October 1st the team from National Highway Authority of India (NHAI) led by a lady engineer and District Administration Budgam led by a Naib tehsildar along with a huge contingent of police and JCBs tried to forcibly acquire the land in Budibagh Choon district Budgam. When the land owners resisted and showed them the High Court order for maintenance of status quo, the officials said they didn’t care and asked them to axe their apple trees as soon as possible. Two land owners Waseem Ahmad Budoo and Umar were taken into custody as well. The officials told the Budibagh villagers that their compensation money has been deposited in the local district court ? How can they do this when almost 4 petitions on Ring Road are pending before J&K high court division bench ? The case is now listed for next hearing on October 21st 2021.
Injustice with Gudsathoo residents
How can District Administration Budgam violate the High Court Division Bench orders? Had J&K Govt paid compensation to all the affected people in Budgam at the right time within 2 years from the date of making declaration under section 6 for construction of Srinagar Ring Road, this would not have been the issue at all. There was a delay from NHAI in transfer of funds to Collector Land Acquisition Budgam. During this process the 2 years time period elapsed. In village Gudsathoo of Budgam district a tentative award was passed on May 1st 2018 and payment was made @ Rs 25 lakhs per kanal to 60 % affected families whose land was acquired. After more than 3 years DC Budgam is asking rest of the 40 % families to take payment @ Rs 15 lakhs per kanal. Ironically the market rate in Gudsathoo village is between Rs 50 to 60 lakhs per kanal, but Govt wants to snatch their land for Rs 15 lakhs.
At any cost Govt has to issue fresh notification as mandated under section 11-B of repealed J&K Land Acquisition Act 1934 Samvat 1990. This is the demand of aggrieved land owners as well. The fresh notification can’t be issued under J&Ks repealed land acquisition law as the Central law (Right to Fair compensation law-RFCTLARR Act) is in operation. Let the Govt give benefits of this act to people of Kashmir. Govt must issue fresh notification in all those villages where section 6 notification has got lapsed in Budgam. Once this is done the entire issue would be addressed. Unfortunately Deputy Commissioner Budgam is not ready to listen to the aggrieved land owners. He wants to take possession of land by force in violation of land acquisition statutes…
(The author is Founder / Chairman of Jammu & Kashmir RTI Movement)
Dr Raja Muzaffar Bhat