Under Article 35-A of Indian Constitution, Jammu & Kashmir legislature has been given complete freedom to decide who the permanent residents the state are. This constitutional provision confers the citizens of Jammu & Kashmir special rights and privileges like acquiring property and getting Government jobs. It is because of Article 35-A, Right to Property is the fundamental right of citizens of Jammu & Kashmir which is not the case in other states of India. As Article 35 – A is being challenged in Supreme Court, I would like to throw some light on how this special constitutional provision has already been bruised eroded by Govt of India in collaboration with successive Governments in J&K state. The erosion of Articles 35-A and 370 even continues now but majority of the citizens of this state are not aware of the same. Article 35-A doesn’t allow citizens of other states to acquire land and property here, but I can quote several instances where the land has not only been acquired but has been forcibly grabbed as well. In many cases the immovable property and land has been acquired in lieu of compensation, but the remuneration paid to affected people is so meager which in some cases is 10 to 15 times less than its actual market value.
Implementation of SARFAESI Act
The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI Act 2002) was enacted by Indian Parliament in year 2002. Because of article 370 this law was not applicable to J&K for many years. SARFAESI Act 2002 allows banks and other financial institution to auction residential or commercial properties to recover loans. Unfortunately J&K Government gave a nod to implement this act last year. The nationalized and private banks like SBI, PNB, AXIX Bank, HDFC Bank etc operating in Jammu & Kashmir have already started issuing notices to the defaulters invoking this Act. The banks can auction mortgaged properties of defaulters to anyone. Haseeb Drabu, former Finance Minister who was the man behind adopting SARFAESI law in J&K on the other hand had argued that mortgaged property can only be purchased by state subjects. Business community, legal & constitutional experts on the other hand smell a rat.
In July 2015 J&K High Court division bench in a landmark judgment in the case of State Bank of India (SBI) V/S Santosh Gupta had said that SARFAESI Act 2002 enacted by Parliament of India cannot be enforced in Jammu & Kashmir. SBI challenged this order before Supreme Court of India which set aside the J&K High Court’s order. Supreme Court in its order said “Constitution provides that the Parliament has exclusive power to make laws with respect to banking and SARFAESI Act. Therefore, SARFAESI Act as a whole is applicable to India including the State of J&K”. J&K Government could have filed a review petition before Supreme Court or could have come up with a legislation challenging applicability of this Act, but Dr Drabu did not advise his Government and the law is now applicable to J&K like GST law which was also forcibly made applicable in J&K.
Forcible land Acquisition
From 1947 onwards thousands of hectares of government and private land in J&K has been allotted to various agencies of Government of India. State Government claims that they acquire the land and then lease out the same to central Government organizations including private companies. In majority of the cases the lease period is 90 years. Who will make Govt accountable after 90 years? In these circumstances how can we claim outsiders have right no property here? For its better understanding let me quote some instances wherein J&K Govt leased out the private and government land to various agencies of Govt. of India plus some private institutions.
Occupying land at Karewa Damodar
Defense Estates Department (DED) acquired 3800 kanals of land ( approx 250 hectares) at Kareawa Damodar near Srinagar airport around 4 years back. The land belongs to villagers of Kralpora, Rangreth, Wathoora, Buchroo, Humhama and adjoining localities. Defense Estates Department (DED) has taken possession of land by invoking Requisitioning and Acquisition of Immovable Properties Act (RAIP Act 1952) which is a Central Government law forcibly extended to J&K. The land acquired by DED was already under possession of Army / Air Force from early 1960s. The farmers would be paid a meager annual rent. In 2014 DED took full possession of land and in return paid mere Rs 6 lakhs per kanal to the affected families. On the other hand the market value of private land located just outside the airport fencing was Rs 80 lakhs to 1 crore per kanal in 2014 and right now it is more than 1.50 crore / Kanal. So the agricultural land with huge commercial value that could have fetched Rs 1 crore / Kanal was forcibly occupied @ Rs 6 lakhs / kanal ? The affected farmers could not even resist over this atrocious and wicked move of Defence Estates Department because the land has been under occupation from 1960s and is heavily guarded and fenced.
Sterlite Power , NHAI
As already mentioned in my previous article more than 30,000 kanals of agriculture land plus forest land has been acquired, thus rendered useless, by a power company namely Sterlite Power for laying of 440 KV DC high transmission lines from Jullandhar to Amargrah Baramulla via Samba. The land which comes under the corridor has not been paid compensation. Thousands of fruit trees that come under the alignment of the electric field will be destroyed in the years to come, plus diminution of commercial value of land. Thousands of forest trees were axed and destroyed. On the other hand several states provide compensation to land coming under transmission line corridor but this is not the case in J&K. Ironically the officers of state administration including police who have taken huge kickbacks are pressuring poor villagers especially in Budgam district not to resist the move. People are complaining of headache and nausea as transmission line is making lot of noise. Electrical field generated has developed health hazards. For Semi Ring Road 7000 kanals of land is being forcible acquired by National Highway Authority of India (NHAI) from Pampore to Ganderbal via Budgam. Compensation paid is 4 times less what NHAI pays in rest of India. NHAI argues that Indian Land Acquisition Act of 2013 is not applicable to J&K. Why was this law not made applicable and GST and SARFAESI laws were thrusted on us?
Conclusion :
I ask leaders of successive Governments who ruled J&K, why you didn’t replace your 84 year old obsolete land law? Ironically J&K Government has failed even to charge compensation from NHAI for the state land that comes under alignment of Semi Ring Road in Kashmir / Jammu. Private Negotiations are being held by Sterlite Power bypassing Collectors who are mute spectators? Power Grid Ltd and NHPC are on warpath with people of J&K. In Leh, Kargil, Budgam, Sonmarg and many areas of North Kashmir plus Srinagar’s Zabarwan hills thousands of hectares of forest and private land has been illegally occupied by security forces. Isn’t this erosion of Article 35-A? Why have successive Governments in J&K allowed haphazard, massive & forcible acquisition of our land by non-state subject – government and private agencies ?