Earlier this month, Yousuf Khan got a notice from the Jammu and Kashmir revenue department. A portion of Khan’s shop constructed in front of his house was on state land, the government said, and Khan would have to clear it.
The eviction notice against Khan is a part of the Jammu and Kashmir government’s drive against alleged encroachment, arguably the largest such exercise to be carried out in the territory. On January 9, the Jammu and Kashmir administration issued a circular, directing all deputy commissioners of the Union territory to ensure that “all encroachments on state land” are “removed to the extent of 100% by 31st January, 2023”.
So far, the authorities have not taken any adverse action against Khan. His shop still stands but the fear of demolition looms.
“How can I not worry when it’s about my livelihood?” said Khan, who lives on the outskirts of Srinagar.
The sweeping anti-encroachment drive triggered mass anxiety and protests in the Union territory, given the scale of the exercise. On Monday, The Indian Express and The Hindu reported that the administration had called a halt to the demolition drive and asked for a consolidated report on the action taken so far.
Jammu and Kashmir Lieutenant Governor Manoj Sinha had promised that the “common man and poor people” would not be affected by the drive, but no formal order was issued laying out the criteria for who is “poor”. As a result, eviction notices were served on small business owners like Khan, who has occupied about 4 marlas or 0.025 acre of state land.
Khan, who asked Scroll not to use his real name, hoped that the government will come up with a regularisation policy for encroachers like him.
But had Jammu and Kashmir’s land laws not been amended in 2020 – following the scrapping of its special status on August 5, 2019 – Khan might have been less anxious.
Under at least two older laws, Khan could have offered the government a piece of land he owned in exchange for the right to continue to occupy state land.
“If I have encroached upon 4 marlas [.025 acre] of grazing land, I could have given them 8 marlas [.050 acre] of land that I own,” Khan offered. “But that provision is no longer there.”
Although the power to accept such an offer was the prerogative of the government, revenue department officials said the provision had been used by many individuals in the past to regularise the state land in their possession.
The changed laws
On October 26, 2020, more than a year after Jammu and Kashmir’s special status under Article 370 and Article 35A were scrapped, the Union Ministry of Home Affairs issued two major orders relating to land laws in the erstwhile state. The orders paved the way for any Indian citizen to buy land in Jammu and Kashmir – a right before August 5, 2019 exclusively restricted for the state subjects of Jammu and Kashmir.
One of those orders – the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020 – repealed 12 state laws, including the historic land reform laws of Jammu and Kashmir. It also amended 14 other laws.
At least two of those amended laws included sections dealing with the encroachment of state land. They are the Jammu and Kashmir Agrarian Reforms Act, 1976, and Jammu and Kashmir Land Revenue Act, 1996.
“While these provisions effectively provided a mechanism to evict an encroacher from land meant for grazing or state land, they also took an accommodative view of the property built by the encroacher,” said a lawyer familiar with Jammu and Kashmir’s land laws, who asked to remain anonymous.
Take the case of the now-amended Section 133(2) of the Jammu and Kashmir Land Revenue Act, 1996.
Under this provision, if an encroacher of a land “reserved for grazing or any other public purpose or of which the cultivation has been prohibited…” had built any structure on it, the person would be evicted, “leaving an area of 10 marlas under and adjacent to the structure…”
In other words, while the provision allowed the authorities to retrieve state land, it left a safety net of 10 marlas – any structure built by the encroacher on the land could not be demolished.
Moreover, once the authorities served a notice, the person had two choices – to either “dismantle the structure standing on such land” or “offer a suitable equivalent area in exchange from out of his proprietary land or from out of the land which he may acquire or purchase for the purpose, in the same village…”
Proprietary land refers to land owned by a person on which she has exclusive rights.
The October 26, 2020, order of the Ministry of Home Affairs replaced this section with a new provision, under which neither was a portion of encroached land to be left undisturbed nor could there be a swap of land.
Similarly, Section 26 of the Jammu and Kashmir Agrarian Reforms Act provided an option to those who had “unauthorizedly raised an orchard or a plantation of trees on state land or land reserved for grazing purposes…” to give an equal area to the government in exchange or clear the land in six months.
This section was scrapped entirely.
A revenue department official, who did not wanted to be identified, said, “Had these clauses still existed, we would be seeing a flood of land exchange applications from the encroachers during the ongoing anti-encroachment drive.”
The effect of the amendments was visible on the ground much before the government’s current anti-encroachment drive.
In November last year, the High Court of Jammu and Kashmir and Ladakh ruled that a person who had occupied state land cannot give his proprietary land in exchange, following the amendments to land laws in Jammu and Kashmir.
The judgement came in a petition filed by Mehraj Ud Din Malik, a resident of North Kashmir’s Baramulla district, who wanted to get ownership rights over a patch of grazing land (6 marlas) in Pariswani village by offering a plot of the same size in exchange.
Malik had applied for the exchange under Section 133(2) of the Land Revenue Act in 2017. On March 18, 2017, a competent revenue department official had declared Malik’s proprietary land “eligible” for exchange. However, the swap never really took place, forcing him to approach the court.
In March 2020, the high court directed Deputy Commissioner Baramulla to “take a decision within three months”.
According to the submissions by the government before the court, when Malik’s case of exchange was still “in process”, the relevant provision “was substituted by a new provision, according to which the power relating to exchange of land has been taken away and now the Deputy Commissioner has no such power.”
The high court concurred with the government’s view on the matter.
Mehraj Ud Din Malik’s legal counsel, Gulzar Ahmad Bhat, said his client has appealed against the judgement.
“When my client applied for the exchange, the provision was very much part of the law. All the formalities required were also completed when the provision was intact and the government accepted his offer,” said Bhat. “Every law has a prospective effect except where it’s mentioned that the law will apply retrospectively. My client has followed the law.”
What complicates the anti-encroachment drive is the history of land rights in Jammu and Kashmir, as both monarchs and elected governments have over decades encouraged residents to occupy and cultivate land.
In 1846, the East India Company vested the ownership of a large area in north India in favour of Dogra ruler Maharaja Gulab Singh after he agreed to pay a sum of Rs 75 lakh to the British.
This agreement, which is popularly known as the Treaty of Amritsar, led to the creation of the state of Jammu and Kashmir. “This meant that the Maharaja owned each and every inch of the state, including the people living on it,” said the lawyer, who is well versed with revenue law.
Since the land was too vast to be managed by the Maharaja or his coterie alone, the Dogra rulers incentivised the cultivation of vast amounts of land by ordinary landless people, he said.
“Throughout Dogra rule, you’ll see the Maharaja issuing various orders or announcements by which the cultivators were given certain rights on this state land,” the lawyer said. “While the primary aim was to generate revenue for the state, it also meant a certain level of prosperity for landless peasants.”
After 1947, the “land to tiller” reforms carried out by the National Conference founder Sheikh Mohammad Abdullah brought about a paradigm shift. Under the reforms, the jagirdari system was abolished and a ceiling on ownership fixed.
The surplus land was then taken over by the state and redistributed among the landless peasantry, who had been toiling on that land for decades.
“Throughout history, governments have not only taken an accommodative view towards the occupants of state land in Jammu and Kashmir but they have even encouraged people to occupy state land,” the lawyer added. “And that is simply because people were poor and they didn’t own any land to live or cultivate on.”
Take the case of the “Grow More Food” policy announced by Abdullah’s government in 1948.
Under the policy, peasants were encouraged to cultivate state land in order to increase agricultural production. “Say a person got land under that policy and it is still in his possession. For so many years, the revenue authorities have not raised an alarm over it. Is he an encroacher now?” the lawyer asked.
Calling all the occupants of state land in Jammu and Kashmir as “encroachers” is problematic, said the lawyer. “Some people in Jammu and Kashmir continue to live on land gifted to them by the Maharaja” he said. “They have been living on that land for generations and their livelihoods depend upon it. Would it be right to call them encroachers?”
He added: “By labelling every occupant of state land as an ‘encroacher’, the government is negating the history of land ownership and orders vesting rights in favour of people by the erstwhile rulers or elected governments.”
Given this history, the government should give the occupants of state land a right to appeal before going ahead with any sort of anti-encroachment drive, added another legal expert.
“That is clearly not happening. This is why there is so much panic and fear among the people,” said the second lawyer, well-versed with the revenue law. “The government should listen to the people as well. The principle of natural justice and the Constitution of India gives them a right to appeal. We are not living under the Taliban.”