Article 370 aftermath: J&K farmers denied benefits of Fair Compensation law

By: Dr Raja Muzaffar Bhat

After abrogation of Article 370 , the 86 year old Jammu & Kashmir Land
Acquisition Act 1934 got automatically repealed. From last many years
there has been a strong demand from affected landowners, farmers and
activists for enactment of a strong land acquisition law in Jammu &
Kashmir.

Farmers in J&K whose land is being acquired on large scale for
various infrastructural projects have been demanding fair compensation
but successive Governments in J&K were adamant to replace the J&K
Land Acquisition Act 1934. Affected farmers , activists protested over this
issue on several occasions in past but nobody paid any attention towards
them. On the other hand elected Government’s in J&K replaced several old
and outdated state laws in past, but replacing J&K’s Land Acquisition law of
1934 was never a priority for successive Government’s. This archaic anti
farmer law has been repealed under J&K Re-organization Act 2019 now
but the benefits of the new Right to Fair Compensation law which is
applicable in J&K from October 31 st 2019 are denied to the affected people.
Under the J&K Reorganization Act 2019 around 153 central laws have
been extended to J&K. This includes Right to Fair Compensation and
Transparency under Land Acquisition Rehabilitation and Resettlement Act
(RFCTLARR Act 2013). For the information of readers, 166 State laws of
Jammu & Kashmir have been protected and continue to remain in force. In
addition to this 07 (seven) state laws also continue to remain in force but
with some amendments.


Many state laws which were beneficial to people of J&K got repealed after
abrogation of article 370. J&K RTI Act 2009 is one such law that was
enacted in year 2009 soon after Omar Abdullah took over as J&K’s Chief
Minister. Omar Abdullah lead Government repealed J&K RTI Act 2004
which was enacted during PDP- Congress Government in year 2004. I had
written a detailed article on this in livelaw.

When UPA-I Government at center enacted RTI Act 2005 , our
organization (JK RTI Movement) launched a campaign for having a similar
law in Jammu & Kashmir. National Conference (NC) assured people in
their 2008 election manifesto to enacted a strong RTI law provided they
come to power. NC formed the Government with the support of Congress
in December 2008 and on March 20 th 2009 state assembly passed J&K RTI
Act 2009. The J&K RTI Act of 2009 (now repealed) was a more robust and
progressive law than RTI Act 2005 (central law). Instead of being protected
like 166 other state laws it was arbitrarily repealed.


Some central laws that could have been beneficial to people in J&K are
not implemented as per the legal provisions contained in these laws. The
Right to Fair Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act (RFCTLARR Act 2013) is one such
law that has been extended to J&K but the provisions contained in this act
are not applied in letter and spirit in Jammu & Kashmir. On the other hand
Government claims people especially farmers have been benefitted by
abrogation of article 370.

Unheard voices of J&K’s farmers

Soon after abrogating article 370 arbitrarily , J&K Government on daily
basis kept issuing advertisements on front page of local newspapers
claiming youth , women and farmers would get benefitted as according to
them article 370 was an impediment in J&K’s growth and development
which otherwise is not at all true. As successive elected Governments had
failed to repeal 86 year old, obsolete & outdated J&K Land Acquisition Act
1934, a little hope was generated with the applicability of Right to Fair
Compensation and Transparency in Land Acquisition Rehabilitation and
Resettlement Act (RFCTLARR Act 2013) in J&K. Under this law people
especially the farmers affected by land acquisition are supposed to get 3 to
4 times more compensation than the market value of land. This law also
guarantees rehabilitation and resettlement for the affected people.

Payment under new law for old cases

There is a clear provision in RFCTLARR Act 2013 that the law applies to
those affected people as well wherein the acquisition process was initiated
under the old land acquisition act, but the final awards and payments were
yet to be made. In addition to it there is a clear mention that if the awards
were made more than 5 years back and possession of land was not taken
by Government such people were also entitled for the benefit of 2013 law.
Section 24 sub section 1 & 2 of Right to Fair Compensation and
Transparency in Land Acquisition Rehabilitation and Resettlement Act –
RFCTLARR Act 2013 reads as:


“Notwithstanding anything contained in this Act, in any case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894,—
(a) where no award under section 11 of the said Land Acquisition Act has
been made, then, all provisions of this Act relating to the determination of
compensation shall apply; or (b) where an award under said section 11 has
been made, then such proceedings shall continue under the provisions of
the said Land Acquisition Act, as if the said Act has not been repealed. (2)
Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of
1894), where an award under the said section 11 has been made five years
or more prior to the commencement of this Act but the physical possession
of the land has not been taken or the compensation has not been paid the
said proceedings shall be deemed to have lapsed and the appropriate
Government, if it so chooses, shall initiate the proceedings of such land
acquisition afresh in accordance with the provisions of this Act (Right to
Fair Compensation law- RFCTLARR Act 2013)”

Illustration


The Land Acquisition Act 1894 was applicable to all the states of India
except J&K. This law was in vogue prior to enactment of Right to Fair
Compensation and Transparency in Land Acquisition Rehabilitation and
Resettlement Act -2013 (RFCTLARR Act 2013). In case of J&K state as
already mentioned, the J&K Land Acquisition Act 1934 was in force. This
law was adopted by Maharaja Hari Singh in 1934 when British India was
following Land Acquisition Act 1894. After independence Government of
India also protected this law until 2013.

As J&K Land Acquisition Act 1934 law was much progressive than Indian
Land Acquisition Act of 1894 , the Government headed by Sheikh
Mohammad Abdullah in 1948 protected this legislation like many other laws of Maharaja.


With the passage of time Government of India replaced 1894 law by
enacting RFCTLARR Act in 2013 during UPA-II Government, but the
elected Governments in J&K (NC-Congress , PDP-BJP ) did not change
the old law on the ground that Government will have to pay huge
compensation to affected people especially farmers. In-fact I along with a
group of other activists had a meeting with former Chief Minister Mehbooba Mufti on this issue in January 2017 at Jammu. She agreed that J&K Land Acquisition Act 1934 needs to be revoked and replaced with a new law, but her law Minister Abdul Haq Khan who was present in the meeting quickly intervened and mislead her on the pretext that Government will have to pay huge compensation to farmers and other affected people.

Ring Road projects

In May 2019, Prime Minister Modi inaugurated two Ring Road projects in
J&K aimed at decongesting traffic in Jammu and Srinagar cities . In Jammu
around 400 acres of land has been acquired for a 58-km highway. The
work has already started in Jammu last year. For Srinagar Ring Road 500
acres of land is going to be acquired for 62-km highway connecting
Pulwama with Ganderbal via Budgam. Srinagar highway will cross through
Srinagar Gulmarg road and then pass via Srinagar’s western outskirts and
enter Ganderbal via Srinagar Bandipora road. Work for Srinagar project
was allotted to an infrastructure company namely M/S RAMKY Infra after
necessary bidding process. The Letter of Award (LoA) was issued to them
on March 5 th 2018 by National Highways Authority of India (NHAI) which is the intending agency. On December 7 th 2019 M/S RAMKY Infra gave
Termination of Contract (ToC) notice to NHAI as Government failed to
acquire the land from the farmers . Some 40 to 50 % farmers in Kashmir
valley have been paid some compensation by respective collectors but this
is an advance money which can be paid to affected persons as per JK
Land Acquisition Act 1934 guidelines. The final award is still awaited. The
Ring Road projects entail acquisition of already limited farmland. In

Budgam district alone which is the most affected district over 5000 fully-
grown apple, walnut, plum and other fruit trees are set to be axed.

Similarly, in Jammu district around 400 acres of land has already been acquired by Government but compensation has not been paid to everyone on one reason or the other.

The process of land acquisition was initiated under J&K Land Acquisition
Act 1934 in year 2016. More than three years have lapsed and not even 1
% of the work has started on Srinagar Ring Road project. In case of
Jammu project, the awards have been prepared arbitrarily and payment
also disbursed to 70 to 80 % farmers but the compensation paid is very
meager as Government rate of land in most of the affected villages is much
less than the market value. In some villages like Ban Sultan , Malikpura
and Kangrail villages of Jammu district which I have personally visited the
market rate is 5 to 10 times higher than the Government rate (circle rate).
Same is the case in Srinagar. The market rate of land in Budgam , Srinagar
and Pulwama districts is much higher and Government plans to take away
the land for peanuts which farmers are resisting. The RFCTLARR Act 2013
will apply automatically for Ring Road projects in J&K but the authorities
want to conclude the process under J&K ‘s obsolete Land Acquisition Act
1934 thus depriving affected people especially the farmers the benefits of
new law which exposes the intentions of the Government. On Dec 31 st Lt
Governor (LG) of J&K G C Murmu held a meeting with state and NHAI
officials on the issue of Ring Road projects and I believe LG is has not
been properly briefed by the officials of NHAI vis a vis Ring Road projects
in Srinagar and Jammu. He must directly talk to affected farmers. The
affected farmers from Kashmir valley were camping in Jammu for 15 days
last year in order to seek an appointment with the then Governor Satyapal
Malik but they were not given an appointment. Although the National
Highway Authority of India (NHAI) which invited tenders for Ring Road
projects had conveyed to the J&K Government in writing few years back
that if J&K Government was willing to adopt the central law , NHAI had no
objection to make payment under the same (RFCTLARR Act 2013).
However the then state Government did not consider the proposal for
undisclosed but extraneous considerations. In some cases money has
been received by farmers under protest while as in many cases the
compensation has not at all been paid.

Land Acquisition by Defence Estates Department

In 2012 Defence Estates Department made a requisition to J&K
Government for acquiring around 480 acres of land (3800 kanals
approximately) near Srinagar airport at estate Karewa Damodar. The said
land belongs to farmers from three to four villages of Budgam district. The
process for land acquisition began under J&K Requisitioning and
Acquisition of Immovable Properties Act 1968 (JK RAIP Act 1968 ) in the
year 2011 , but till date the final payment is yet to be disbursed. As the J&K
RAIP Act 1968 has been repealed under the JK Reorganization Act 2019,
the farmers are being forced to take payment under the same old law.
Ironically the payment under J&K RAIP Act 1968 is also not being made as
the file is pending in Ministry of Defence from last 1 year. Government
(Collector Budgam) has fixed Rs 18 lakh per kanal as compensation rate
but the market value in the same area outside airport premises is more
than Rs 1 crore per kanal (around Srinagar airport). The Ministry of
Defence has to refer the case to Union Cabinet but this is being constantly
delayed. The farmers are forced to take Rs 18 lakhs per kanal which
otherwise would cost Rs 1 crore per kanal or more . Even the payment @
Rs 18 lakhs is also not made and from last 8 years affected people are
moving from pillar to post.

It is worthwhile to mention that when Right to Fair Compensation and
Transparency in Land Acquisition Rehabilitation and Resettlement Act –
2013 (RFCTLARR Act 2013) was enacted , Government of India repealed
several laws related to land acquisition. Among these repealed law was
Requisitioning and Acquisition of Immovable Properties Act 1952 (RAIP Act
1952). But the J&K Government continued to follow its own J&K RAIP Act
of 1968 which has now been repealed after abrogation of Article 370. This
means land acquisition at estate Karewa Damodara (Srinagar airport) has
also to be concluded under RFCTLARR Act 2013 as final payment is yet to
be made. The authorities are completely silent on this. Farmers and affected people are neither able to cultivate their land nor are being paid
compensation nor rent. This whole land (around 480 acres-3800 kanals) is
located in a high security zone with huge boundary wall and fencing all
around. From 1965 to 2011 the farmers were paid annual rent for their land and after 2011 when the land acquisition process began, the payment of rent has also been withheld. Affected people / farmers had been paid some advance money in 2012 (Rs 4.80 lakhs / kanal) and same was taken under protest by the affected farmers.

Arbitrary Compensation for fruit trees

For the Ring Road project the compensation was to be accessed both for
land and also for the crop which includes fruit and non-fruit bearing trees.
The assessment for fruit bearing trees was made as per the old schedule of
1993 wherein compensation paid to apple trees is fixed @ Rs 16 / kg while
as the present retail rate of this fruit is Rs 50 to 100 in open market. For
mango trees the compensation was assessed @ Rs 16 per kg while as
same also sells for Rs 50 to Rs 100 per kg in market. A mango orchard in
Bishnah area of Jammu belonging to Mr S K Dubey was axed recently
while as compensation is yet to be paid. If he is paid compensation that
would be 5 to 6 times less than the actual market value. The officials came
and forcibly cut down 85 year old mango trees of Mr Dubey. Same is the
case with other fruits and nobody is listening to the woes of affected
farmers whose thousands of fruit bearing trees are coming under alignment of Ring Road projects. While assessment was being made the horticulture department officials didn’t follow any guidelines. An apple or plum tree that could fetch 100 to 150 kgs of fruit was shown to fetch mere 15 to 20 kgs of fruit only. The officials of Horticulture department looted farmers and took hefty amount as bribe during assessment of fruit trees. Those who didn’t pay were paid 5 to 10 times less compensation. The affected farmers were forced to get a stay order from JK High Court thus disallowing authorities to axe the fruit trees in Budgam and parts of Srinagar.

Many fruit trees have earlier been axed during laying of a huge
transmission line from Samba in Jammu to Amargad in Baramulla. The
company which undertook this 440 KV DC Samba Amargad transmission
line project made payments arbitrarily and hundreds of hectares of farm

land has been affected. The people affected with this transmission line
have not been paid any compensation. In-fact more than 50,000 forest
trees were also axed during this process and compensation paid to Forest
department is 10 times less than the market value of these forest trees.

Conclusion

The average size of operational landholdings in India, according to 2015
Agriculture Census was 1.08 hectares. During 2011 census this figure was
bit higher ie 1.15 hectares. It indicates agriculture land is shrinking day by
day. In Jammu & Kashmir the average agriculture landholding is around
0.56 hectares which was bit more during agriculture census of 2011. This is
much less than the national average. This figure is far less for the districts
in the Kashmir valley as limited agriculture land is constantly being
acquired for developmental projects like highways , railways , power
projects , power transmission lines, tunnels , flyovers etc. Srinagar
Municipal Corporation (SMC) is in search of 50 to 60 acres of land for
creating a scientific landfill site in city outskirts but from last 10 years they
are not able to get this land as the same is not available at all with the
result existing landfill site is getting chocked and emits foul smell
constantly.

Most of the farming community in J&K fall under category of marginal
farmers as their operational land holding is between 0.5 to 1.o hectares
only. Not even 5 % of them are large or medium group farmers as per the
Ministry of Agriculture guidelines. In such a scenario any policy related to
agricultural land acquisition in J&K, including for “development projects”,
has to take into account Jammu & Kashmir’s unique natural and
topographical features. Instead of paying more compensation to farmers of
J&K for land acquisition, they are even denied the compensation that
authorities pay in other states and on the other hand a false narrative is being created that people in J&K are getting benefitted after abrogation of
article 370.

Dr Raja Muzaffar Bhat is Srinagar based Activist and Columnist. He is an Acumen India fellow and Founder / Chairman of J&K RTI Movement. Feedback bhatrajamuzaffar@gmail.com

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