Dr Raja Muzaffar Bhat
When the article 370 of constitution was read down on August 5th 2019 , several laws of the erstwhile state of J&K were under operation and implementation. Not only were the laws in operation or their rules but there were investigations and legal proceeding going on as well under various statutes. This article is aimed at creating awareness about the constitutional changes that took place in Jammu & Kashmir post abrogation of article 370. People are not aware which law applies where, as dozens of central laws have been extended to Jammu & Kashmir from time to time in the last 2 years. Have all those proceedings been declared null and void after dozens of central laws were extended to Jammu & Kashmir under the J&K Re-organisation Act 2019 order 1st or subsequent orders ? No, not at all. Most of the erstwhile J&K state laws which have been repealed and replaced by central laws will continue to be in force until the proceedings taken under those laws are completed even if these laws stand repealed and replaced by central laws. Similarly many state laws of J&K were given legal protection. Under the J&K Reorganisation Act 2019 order 1st as many as 166 J&K laws were protected. Some of them were later on repealed as well under different orders passed by the Ministry of Home Affairs (MHA) but still there are approximately 130 or more laws which continue to be in force.
Removal of difficulties order
Along with J&K Reorganisation Act 2019 , the MHA came up with orders called Jammu and Kashmir Reorganisation (Removal of Difficulties) Orders, 2019, 2020 and 2021.The article 214 of the Constitution of India provides that there shall be a High Court for each State. The High Court of Jammu and Kashmir was established on the basis of the Jammu and Kashmir Government order Number 1 issued on the 26th March, 1928 when Maharaja Hari Singh ruled Jammu & Kashmir. The Part IV of the Jammu and Kashmir Constitution Act, 1939 dealt with the judiciary in the State. The High Court was established under clause (a) of section 48 of the said Act in 1928, and continued to be the High Court for the State. The sub-section (1) of section 93 of the Constitution of Jammu and Kashmir, 1956, declared that there shall be a High Court for the State of Jammu and Kashmir and that the High Court exercising jurisdiction in relation to the State immediately before commencement of the Constitution shall be the High Court for the State.
The Jammu and Kashmir Reorganisation Act, 2019 ( Act no 34 of 2019) was enacted to provide for reorganisation of the existing State of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The clause (a) of sub-section (1) of section 75 of the Jammu and Kashmir Reorganisation Act, 2019 declared that the High Court of Jammu and Kashmir shall be the Common High Court for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
Section 13 and 14 of the order
The clause 13 of Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 says that Acts repealed under J&K Reorganisation Act 2019 (post 370) shall not affect the previous operation of any law so repealed or anything duly done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed or any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.
The clause 14 of J&K Reorganisation (Removal of Difficulties) order 2019 also has similar provisions. It reads as :
“Anything done or any action taken including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or Scheme framed, certificate obtained, permit or licence granted or registration effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the Central laws now extended and applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Central laws now extended”
Misinterpretation of the order
Some Govt officers misinterpret both these clauses. The collector land acquisition for Srinagar Ring Road district Budgam some months back in his response filed before the High Court of J&K supported by an affidavit in the matter of Abdul Salam Bhat & others vs UT of J&K said that Ring Road affected people from village Wathora Budgam cannot demand compensation under Right to Fair Compensation & Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013- (Central law) as the same is negated in terms of clarification envisaged in clause 13 and 14. He believes that land acquisition proceeding in Wathora was started under J&K Land Acquisition Act 1934 samvat 1990 and has to be concluded under the same act.
It seems the collector land acquisition who has been transferred from Budgam now has tried his best to suppress the material facts and mislead the Hon’ble High Court. The officer has not at all mentioned about the official communication No: DCB/LAS/20/300-10 dated 18.05.2020 wherein his boss i.e the Deputy Commissioner, Budgam suggests Divisional Commissioner, Kashmir for issuance of a fresh notification under the central law (Right to Fair compensation act) as the declaration issued under section 6 of erstwhile J&K Land Acquisition Act 1934 (samvat 1990) has elapsed due to efflux of time as per section 11-B of the repealed act. The said 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 like Gudsathoo , Ichgam , Ganjibagh , Dharmuna , Khanda and includes Wathora at serial no 19 as well, the approval of the award has not been received from the competent authority within stipulated time of 2 years . He also admits that the land acquisition proceedings for these villages have lapsed under the provisions of section 11-B of the J&K Land Acquisition Act 1934 samvat 1990.
Prominently the declaration under the repealed J&K Land Acquisition Act 1934 samvat 1990 was issued on August 8th 2017 and the awards were to be finalized within 2 years ( i.e. by or before August 7th 2019). The Collector and the Govt both failed to do so. The Deputy Commissioner, Budgam in his official communication mentioned above sought 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.”
Instead of acting over the suggestion made by Deputy Commissioner Budgam, the Govt gave consent to the award through Financial Commissioner Revenue J&K (competent authority) on 13th August 2020 vide his official communication No: FC -LS/LA-4577/2017. This was done after a time period of more than 3 years and is completely a legal fraud.
Conclusion
It was the duty of the Government more particularly a responsibility was cast upon General Administration Department (GAD) Revenue Training Institute (RTI) and Institute of Management Public Administration and Rural Development (IMPARD) to conduct frequent workshops / capacity building programmes to create an understanding among the officers of Govt particularly the land acquisition collectors. I had earlier also urged the Govt to hold sensitization programmes for land revenue officers for better implementation and interpretation of the revenue laws. In absence of such workshops and training programmes varying interpretations and statements are sine qua non . However , in exercise of inherent jurisdiction , the Hon’ble High Court is the best forum to interpret all statutes and laws made applicable to UTs of J&K and Ladakh. The J&K state Judicial Academy is yet another forum which could prioritize holding of workshops, interactive sessions and sensitization programmes on the changes in land acquisition laws in Jammu & Kashmir as all the district and sessions judges exercise special powers under the both repealed and existing land acquisition laws. Not only the judicial officers be invited to participate in these sessions but the collectors of land acquisition should also be invited as well….
(The author is Founder / Chairman of J&K RTI Movement)
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