The central government on 27 October 2020 notified two orders — the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Third Order and the Jammu and Kashmir Reorganization (Adaptation of State Laws) Fifth Order, 2020 — that repealed 12 Acts and amended 14 laws related to land in the erstwhile state.
The move came more than a year after the revocation of Article 370 and 35A of the Constitution, on 5 August 2019, which accorded special status to Jammu and Kashmir and disallowed outsiders to own land there. They also denied land rights to women who married non-residents.
However, the changes enacted on 27 October 2020 will now allow even non-residents to own immovable property in Jammu and Kashmir. The notification also allows transfer of agricultural land for non-agricultural purposes, but only after a government permit.
Laws that were repealed
The two notifications on 27 October 2020 repealed 12 land laws, and among them was the historic Big Land Estate Abolition Act, 1950, which paved the way for rural prosperity in the former state and ended landlordism there, according to experts.
The erstwhile Act placed a ceiling of maximum 22.75 acres on land holdings. Land that surpassed this limit was automatically transferred to the tiller, who was not required to pay any compensation to the original owner.
Another significant law that has been repealed is the Jammu and Kashmir Tenancy Act, 1980 that had stayed all applications or proceedings relating to ejecting tenants.
The order also does away with the Jammu and Kashmir Common Lands (Regulation) Act, 1956, which regulated the rights of common land such as roads, streets, lanes, pathways, water channels, drains, wells, tanks or any other source of water supply to villagers.
The Jammu and Kashmir Alienation of Land Act, 1938 — a law related to the transfer of agricultural land for non-agricultural purposes — will also cease to operate.
The law that prohibited the conversion of land into orchards and existing orchard land for other uses, without prior government permission, termed the Jammu and Kashmir Prohibition on Conversion of Land and Alienation of Orchards Act, 1975, has also been repealed.
The other Acts that are no longer effective in the UT are the Jammu and Kashmir Consolidation Of Holdings Act, 1962, the Jammu and Kashmir Flood Plain Zones (Regulation and Development) Act, the Jammu and Kashmir Land Improvement Schemes Act, the Jammu and Kashmir Prevention Of Fragmentation Of Agricultural Holdings Act, the Jammu and Kashmir Right Of Prior Purchase, Act, the Jammu and Kashmir Utilization Of Lands Act and the Jammu and Kashmir Underground Public Utilities (Acquisition Of Rights Of User In Land) Act.
The order also extends the operation of The Real Estate (Regulation and Development) Act (RERA), 2016 — a central law — to the UT.
RERA seeks to protect home-buyers and also boost investment in the real estate industry. It allows an authority to regulate the real estate sector and also acts as an adjudicating body for speedy property dispute resolution.
On 27 October 2020, the home ministry also notified the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020. It is under this order that the Narendra Modi government has made noteworthy changes.
Most significantly, the phrase “permanent resident of the state” has been omitted from Section 17 of the Jammu and Kashmir Development Act that deals with disposal of the land in the union territory, making it possible for outsiders to purchase land in the region.
The order also omits a provision from the Jammu and Kashmir Land Grants Act that permitted termination of land lease, without any compensation, if any non-resident was introduced as a promoter or member of a society.
It also altered the definition of domicile. Under the law, domiciles are those who have been a resident in the region for a period of 15 years or have studied for a period of seven years and appeared in Class 10 or 12 exams in a registered educational institute in Jammu and Kashmir. Domiciles are given preferential admission in colleges and benefits like scholarships are extended to their children.
The order introduces a new section in the Jammu and Kashmir Civil Services Decentralisation and Recruitment Act that recognises the spouse of a civil servant, posted in the UT, also as a domicile. The norm was earlier applicable only to the children of central government officials posted in the region for a period of not less than 10 years.
Another significant amendment is the addition of a new clause in the Jammu and Kashmir Development Act. This new section allows the government, on the written request of an Army officer not below the rank of corps commander, to declare an area as a strategic area, for operational and training requirements. This will permit the defence forces to induct personnel in the strategic area, based on requirement and in case of an emergency.
The government has also set up a new body called the J&K Industrial Development Corporation, under the Jammu and Kashmir Industrial Development Act, to speed up industrial development, invite investment, set up industrial units and promote corporate farming. The modified law permits the corporation to acquire land for setting up industrial units.
However, if it is unable to acquire the land by agreement, the government can order proceedings under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. Under this Act, a penalty is issued in case anyone obstructs any person with whom the corporation has entered into contract.
Agricultural activities, non-agricultural use of land, forest land
Under the amended Jammu and Kashmir Land Revenue Act, the definition of agriculture and allied activities have been extended to raising of crops including food and non-food crops, fodder or grass, fruits, vegetable, flowers, animal husbandry, dairy, poultry farming, stock breeding, fishery, and agro-processing related activities. The modified law disallows sale as well as gift or exchange or mortgage of agricultural land to a non-agriculturist.
However, the law has carved out exemptions through which such a transfer can be permitted. A newly-formed revenue board will notify the detailed procedure, prescribe a form and fix the fee for conversion of agriculture to non-agricultural purposes.
The government can allow transfer of agricultural land in favour of an eligible public trust established for charitable purpose and which is non-profitable in nature as well as for education and healthcare services. It can also, via notification, allow transfer of land to a person, institution or corporation, for industrial or commercial or housing purposes or agricultural purposes meant for the development of the UT.
Non-agriculturists who have had the land transferred to them and intend to use it for non-agricultural purposes are required to now do so within five years. The provisions of the Indian Forest Act, 1927, will also be applicable in the UT as the order substitutes the state law — The Jammu and Kashmir Forest Act — with the central law.