On October 22, days before the state of Jammu and Kashmir was officially split into two Union Territories, the state administration announced a new department of registration would be set up.
It would function under the revenue department. The aim was to “provide hassle free and speedy service to the citizens for registration of documents pertaining to immovable property like sale, gift, mortgage, lease, bequest”, said a government press release on October 23. The governor had approved the creation of 464 new posts for the new department.
The changes are part of Jammu and Kashmir’s transition from state to Union Territory after it was stripped of special status under Article 370 on August 5. The state constitution, enacted under Article 370 of the Indian Constitution, was also struck down. Article 35A, which granted the state government the power to define “state subjects” and reserve for them certain rights and privileges, including the right to own land, was repealed.
Parliament passed the Jammu and Kashmir Reorganisation Act, which lays out the roadmap for this massive administrative overhaul. It lists 153 state laws that are to be repealed and 106 Central laws that have been imposed on the new Union Territories. One of the state laws listed is the Jammu and Kashmir Registration Act, replaced by the Registration Act, 1908, a Central law.
It touches on one of the major changes that have resulted from the August 5 decision: the buying and selling of land in Jammu and Kashmir. Already, it has triggered protests among lawyers of the former state.
From the judiciary to the executive
Under the reorganisation act, clauses in the old state laws that restricted the sale of land to only state subjects were struck down. Land may now be bought even by those considered outsiders to Jammu and Kashmir.
The new registration act also changes the authorities who control the registration of land transactions. Under the state law, the registration of such transactions had to go through the judiciary.
The chief justice of the Jammu and Kashmir High Court had the powers and duties of the inspector general of registrations while the principal district and sessions court judges acted as district registrars. The former state’s law department held administrative control of registrations.
Until the new department is created, additional deputy commissioners will exercise the powers of registrars for revenue and sub-divisional magistrates/ assistant commissioners will do the work of sub-registrars. Pawan Kotwal, financial commissioner for revenue in Jammu and Kashmir, will now be inspector general of registrations.
The transfer of powers from the judiciary to the executive has created some misgivings. “The entire process will be handled by the revenue department alone,” Zayeem Ahmad, a lawyer at the civil court in the Kangan area of central Kashmir’s Ganderbal district. “The level of scrutiny in court registrations is very high. It will not be the same at revenue department.”
‘Loss of transparency’
The most vocal opposition to the transfer of registration powers has come from lawyers in Jammu. On November 1, they went on an indefinite strike against the government’s decision to divest the judiciary of registering powers. The lawyers’ strike is spearheaded by Jammu Bar Association president Abhinav Sharma, who is also a spokesperson for the Bharatiya Janata Party.
According to Sharma, the Central law did act did not specify which department could handle transactions. “Under the act, the government can give the powers of registration to anyone,” he said. “This is just an order issued by the administration whereby they have given the powers of registration to revenue authorities.”
Sharma asserted that judicial oversight of registrations ensured “more transparency” and convenience for the public. “The entire registration process was done under one roof,” he said. “It was convenient for public as well as lawyers.”
On November 21, the lawyers in Jammu threatened to intensify their protest. Sunil Sethi, a BJP spokesperson in Jammu, said that the party’s Jammu and Kashmir president had written to what was then the state administration saying that “registration powers shouldn’t be taken away from judicial officers and given to revenue officials”.
He also said that there had been one round of “negotiations” between the Jammu Bar Association and Geeta Mittal, chief justice of the Jammu and Kashmir High Court. There were initially two issues over which lawyers were on strike, Sethi explained. The first related to the registrations and the second concerned shifting the Jammu branch of the High Court to another location in the region. Earlier this month, the authorities agreed not to shift the court so only the first problem remains.
A different fear in Kashmir
Lawyers in Kashmir have also opposed the decision, although protests against it have been absorbed into an indefinite strike held since August 5. The Srinagar branch of the Jammu and Kashmir Bar Association is protesting against the revocation of the state’s special status as well as the incarceration of at least two of its senior members, detained under the Public Safety Act and sent to jails outside Jammu and Kashmir.
Still, objections to the transfer of registration powers had been made. “We have condemned this decision twice,” said Aijaz Bedar, vice president of the Jammu and Kashmir High Court Bar Association. “We issued two press releases on this decision but the irony is that none of the local newspapers in Kashmir dared to publish them.”
In the Kashmir Valley, the decision has reinforced one of the most acute fears since August 5: that the state’s reorganisation, and the lifting of curbs on the ownership of land, was aimed at introducing demographic changes in the Muslim-majority region. The government would do this by encouraging outside investment and non-local residents to buy property, the fear goes.
“It’s easier to influence a revenue official than a judicial officer,” said a lawyer in Srinagar who did not want to be identified. “I mean, if the government wants to do property transfers on a fast-track basis, it can be done very easily now. Earlier, very few in government had the audacity to influence a judicial official and direct them to register a document.”
Besides, he pointed out, the revenue department would be stretched thin with its new responsibilities, especially until the new appointments for the registration department were made. “Does the government have any idea how occupied these officials are in their primary duties?” demanded the lawyer. “You are basically taking work from someone who already knows and is doing registration, and giving it to someone who will have to learn the process of registration and then carry it out. Even if everything goes smoothly, it will take at least five years for revenue officials to learn and perform the task of registration like it used to be done in the courts.”
Untrained revenue officials would not be able to spot legal gaps in land transfer documents, he contended. “A judicial officer is much more competent in puncturing holes in a sale or mortgage deed because it’s a purely legal document,” he said. “I have seen judges throwing away wrongly-drafted deeds. They are very particular about every single detail or clause in the deed. I would be surprised if a revenue official maintained the same level of scrutiny.”
Since November 1, the administration of the union territory of Jammu and Kashmir has called revenue officers to several orientation programmes on the Registration Act, 1908.
An old idea
In 2013, the state government of Jammu and Kashmir, then a coalition between National Conference and the Congress, had considered handing over registration powers to the revenue department.
“The matter never reached a consensus and as a result we dropped the idea,” said Abdul Rahim Rather, who served as finance minister in that government.
According to Rather, the idea never went beyond the “discussion stage” and was dropped after objections were raised in various circles. “It was just discussed whether it would be right if we kept a separate registration department because judicial officers have other work, too,” said Rather. “In many states of India, the department of registration is separate. But when there were objections from various quarters, including lawyers, we shelved the idea. We didn’t want any controversy that time.”
Rather, who is among the many political leaders under house arrest since August 5, avoided commenting on the government’s decision to push through the transfer of registration powers. “I don’t know what lines the government is thinking on,” he said.
More red tape
Lawyers are partly aggrieved because they could lose a chunk of their income.
“Sixty per cent of a lawyer’s income at the district or tehsil level used to come from the registration of documents,” said Zayim Ahmad. “Today, they have handed over the registration powers to the revenue department. Tomorrow, they can designate some revenue officials to draft immovable property deeds. What will be our role then?”
Abhinav Sharma in Jammu was less worried on that score. “A sale or mortgage deed is a legal document and a layman cannot draft it on its own,” he said. “Lawyers will have the same role as before but now they may have to make rounds of the revenue department with their clients. Earlier, it was easier for a lawyer because everything used to take place in court.”
Mubashir Ahmad, a lawyer at the tehsil court in Pampore in South Kashmir’s Pulwama district, said the added trips to the revenue department could mean clients would have to pay lawyers higher fees.
He also feared the changes had widened the “scope for corruption”. “We might well see a kind of broker system emerging at these registration departments,” he said. “A client doesn’t have time to make multiple rounds of government departments. So, there might be people who will get the registration done in return for a fee.”
Either way, he concluded, the new system promised to cause “inconvenience for the public.”