Life After Article 370: Orchards of Distress

Few know that in order to build a new highway, farmland is being acquired in the erstwhile state of Jammu and Kashmir under a repealed and obsolete law. Farmers are being given a meagre compensation for the fruit trees growing on their land. Their only hope is a technical committee report submitted to the Supreme Court, which reframes the debate on how trees must be valued. But is anybody listening, asks RAJA MUZAFFAR BHAT reporting from Budgam, Kashmir.

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MORE than 90 percent of farmers in Jammu and Kashmir are officially marginal. The size of small agricultural landholdings in the Union Territory (UT) was estimated at 0.55 hectares by the Agriculture Census 2015-16, but unofficial sources say they are much smaller, 0.45 hectares on average. In Kashmir Valley, the size is even smaller. During the 2010-2011 Agriculture Census, the average size of operational land holdings in India was 1.15 hectares. This figure was also lower, at 0.62 hectares, for Jammu and Kashmir.

Districts in Kashmir Valley had even lower landholding sizes than the state as a whole: Anantnag 0.39 hectares, Kulgam 0.39, Shopian 0.56, Pulwama 0.48, Srinagar 0.31, Budgam 0.43, Baramulla 0.51, Ganderbal 0.37, Bandipora 0.48, and Kupwara 0.51. This figure fell during the 2015-16 Agriculture Census. In the Valley, where most farmers own less than an acre of land, any government policy related to land acquisition, especially for “development projects”, needs to take into account the fragile mountainous environment and climatic conditions as well.

Prime Minister Narendra Modi recently told Rajya Sabha while highlighting the schemes introduced by his government, that the three new farm laws seek to fulfill the aspirations of over 12 crore small and marginal farmers. Surely he meant to also include the farmers in Jammu and Kashmir, especially the apple, pear, and plum-growers.

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The government is in the process of acquiring more than 600 acres of land for the Srinagar Ring Semi Road project in Jammu and Kashmir. Some villages in Pulwama, Budgam, and Srinagar are affected by the land acquisition process for this project.

This highway project was inaugurated by Modi on 19 May 2018 at Srinagar. This 62-km alternate road will be constructed on highly fertile land. Budgam alone is losing 500 acres of its farmlands.

The government is in the process of acquiring more than 600 acres of land for the Srinagar Ring Semi Road project in Jammu and Kashmir. Some villages in Pulwama, Budgam, and Srinagar are affected by the land acquisition process for this project. This 62-km alternate road project was inaugurated by Modi on 19 May 2018. It will be constructed on highly fertile land. Budgam alone is losing 500 acres of its farmlands.

When the notification for land acquisition was issued in 2017, the central government’s Right to Fair Compensation Act and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, was not applicable in the state. Further, the government failed to provide compensation to many affected farmers within the two years stipulated under this law. Therefore, even this notification issued by the government has technically lapsed.

However, the government has invoked the obsolete J&K Land Acquisition Act, 1934, which was repealed soon after J&K’s special status was withdrawn on 5 August 2019, to carry on this process.

The government does not want to give the benefits of the Right to Fair Compensation Act, 2013, to the affected farmers of J&K, particularly those affected by the Srinagar Semi Ring Road project. The apple, pear, and plum trees falling within the areas designated for the road are to be axed, but the government is preparing a compensation plan as per the rates that were applicable in 1995.

The final compensation for fruit trees has been fixed at Rs. 16 per kilo for apple trees, Rs. 13 per kilo for plum trees, and Rs. 14 per kilo for pear trees. This is unacceptable to the affected farmers, who want the valuation to be done according to the prevailing market rates.

ACQUIRING LAND UNDER A REPEALED LAW

On 13 August 2020, the Financial Commissioner (Revenue) issued a communication (letter No: FC -LS/LA-4577/2017) conveying to the Divisional Commissioner, Kashmir, approval for the rates at which land would be acquired in six villages of Budgam district, namely, Gund-e-Kuzwera, Wathoora, Jawaharpora, Ichgam, Dharmuna, and Waterwani.

The Financial Commissioner (Revenue), who has been made the “competent authority” in the matter, approved the rates under the repealed 1934 Act. He did so after the awards were prepared by the Collector, Land Acquisition, Budgam. This approval was given by the “competent authority” after a gap of almost three-and-a-half years, which violates the 1934 Act and the Right to Fair Compensation Act, 2013, which is applicable in the Union Territory of J&K ever since the abrogation of Article 370.

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Ironically, the approved rates are much lower than even the government’s stamp rates for 2020. Section 11 of the 1934 Act mandates the acquiring authority to complete acquisition proceedings within two years of declaring an intent to acquire the land under section 6 of the Act. If it fails to do so, the notification and proceedings lapse according to section 11-B of the 1934 Act (now repealed).

The Prime Minister, Home Minister and other leaders of the Bharatiya Janata Party had said the extension of central laws to J&K would confer upon its people benefits such as under the flagship programmes. Unfortunately, the practice of depriving people of their rights persists in the new Union Territories, which can only mean further alienation of the region. 

For instance, the notification under section 4 was issued on 20 March 2017 regarding village Wathoora in Budgam and the declaration under section 6 was made in August 2017. It was thus mandatory for the Collector, Land Acquisition, Budgam, to finalise the acquisition process and make an award before August 2019. It was also incumbent upon the collector to notify the award according to the repealed Act, which says, the award of the collector would be final when:

“(1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and the value of the land, and the apportionment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested, as are not present personally or by their representatives when the award is made.”

However, the Collector, Land Acquisition, Budgam, did not at any point notify the aggrieved farmers that any award was made by him in respect of their land intended to be acquired within two years beginning 1 August 2017, by the Financial Commissioner’s communication dated 13 August 2020. Not even an oral notice was issued to the affected people to attend the collectorate to receive the award. Therefore, for this reason, as well, a fresh notification has to be issued for the acquisition and compensation.

LETTER OF DC BUDGAM

On 18 May 2020, an official communication (No: DCB/LAS/20/300-10) was sent by the Deputy Commissioner, Budgam, to the Divisional Commissioner, Kashmir. The letter contains a comprehensive village-wise status report about the acquisition of land for the construction of the Srinagar Ring Road.

The DC Budgam clearly discloses in his communication that in several villages, no approval of the award has been received from the competent authority. He also admits that the land acquisition proceedings for these villages have lapsed.

The Deputy Commissioner, Budgam, then seeks instructions from the Divisional Commissioner, Kashmir, to initiate fresh proceedings under the Central Land Acquisition Act in the following terms:

“Guide if the land acquisition matters of villages detailed at (a) of the communication are to be initiated afresh as per the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013.”

It is important to note that the affected landowners in Jammu have already been deprived of fair compensation during the construction of the Jammu Ring Road project as the land acquisition process was completed under the repealed law when Article 370 was intact. One affected farmer, an ex-serviceman named Harbans Lal of Bishnah tehsil in Jammu, committed suicide last year as the government paid him a mere Rs. 11 lakh for his house and half a Kanal of land that fell in the way of the Jammu Ring Road.

Moreover, section 24, subsections 1 and 2, of the Right to Fair Compensation, 2013, is applicable in the Union Territory of J&K with effect from 31 October 2019, also has a similar provision:

“…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.”

Pertinently, the 1894 Land Acquisition Act was applicable across India (except J&K) before the enactment of the Right to Fair Compensation Act, 2013. In J&K, the 1894 law can be equated with the 1934 Act.

JAMMU RING ROAD PROJECT

After the abrogation of Article 370 and enactment of the J&K Reorganisation Act, 2019, several laws of J&K were repealed and some central laws, including the Right to Fair Compensation, 2013, were extended to the newly-created Union Territories, on 31 October 2019.

The 1934 Land Acquisition Act, having been repealed, figures at Serial No. 73, Table 3 in Schedule 5 of the J&K Reorganization Act, 2019, while the 2013 Act, having been extended to J&K, figures at Serial No. 94, Table 1 of the same schedule.

It is important to note that the affected landowners in Jammu have already been deprived of fair compensation during the construction of the Jammu Ring Road project as the land acquisition process was completed under the repealed law when Article 370 was intact.

One affected farmer, an ex-serviceman named Harbans Lal of Bishnah tehsil in Jammu, committed suicide last year as the government paid him a mere Rs. 11 lakh for his house and half a Kanal of land that fell in the way of the Jammu Ring Road.

INJUSTICE TOWARDS FRUIT-GROWERS

The government has already compensated for the apple, pear, and plum trees that are coming under the planned route of the Srinagar Semi Ring Road. Affected farmers took money under protest in 2018 as the assessment was made at rates prevailing in 1995, when apple, pear, and plum were being sold at Rs. 16, Rs. 14, and Rs. 13 per kilo respectively in the wholesale market according to government figures. Even at the time, the rates were much higher, (from Rs. 20 to Rs. 25) for these fruits.

The affected farmers got a stay order from the Jammu and Kashmir High Court, and therefore the trees have not been axed so far. There is another reason why the trees are still intact: the land is still under the possession of the farmers, as the highway has not been constructed yet.

A Supreme Court-appointed technical committee has estimated the value of each tree at Rs. 74,500 multiplied by its age. This has generated hope among orchardists. The technical committee’s report will help frame the guidelines on the valuation of trees that will be axed during the construction of the road.

The Forest Rights Act (FRA), 2006, was not rolled out until people protested. Instead, forest-dwellers were issued eviction notices and their properties and apple orchards damaged. Similarly, the Prevention of Atrocities Act, 1989, is not being rolled out in J&K and with respect to the Right to Fair Compensation Act, 2013, the government is engaging in legal deceptions by invoking an 87-year-old repealed and outdated law that applied to the erstwhile state, which is depriving marginal farmers of Kashmir their rights.

The panel of experts told the Supreme Court bench headed by Chief Justice SA Bobde that a heritage tree—a large tree that takes decades or centuries to mature—serves society as well. It can be valued on the basis of the oxygen, micro-nutrients, compost, and bio-fertiliser it releases into the earth and air as well. Heritage trees include species such as banyan, pinus, chinar and many others.

This report will help the affected people, especially the farmers and orchardists, whose priceless trees are scheduled to be axed for building a road.

“We will approach authorities or even the judiciary and demand fair compensation for our fruit trees that will be axed in the months to come paving a way for the Srinagar Semi Ring Road project. Why is the government giving us compensation as per the 1995 rates? Will Secretary, Agriculture, J&K government, or the Agriculture Minister of India agree to take a salary which used to be given to officers or ministers in 1995? They won’t agree I am sure, how can they expect us to accept this paltry compensation of Rs. 16 per kg for apple when the same is sold at Rs. 60 to 70 per kg in the wholesale market?” Gulzar Ahmad, an apple grower from Budgam, told The Leaflet.

Gulzar’s over one hundred apple trees aged between 25 and 27 years fall within the alignment of the Ring Road and would be axed in coming months.

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PHYSICAL POSSESSION OF LAND

The testimonies of the affected farmers, that they have been in continuous physical possession of their lands, is borne out by the revenue records (known as Girdawari for Rabi 2019- 2020) that was issued by the Patwaris concerned. This record makes it clear that farmers are still in possession of their lands.

For this reason too, the entire land acquisition proceedings under the repealed law have become infructuous, as neither have the farmers left possession of their land, nor have they been compensated in consequence of any award, which in any case the affected people were never notified of.

Even the High Court of J&K in its interim order in the case of Abdul Salam Bhat vs State of J&K. has made it clear to the government that if it wants to acquire land, it should acquire it as per the prevailing law. The government was told to respond as well, but for four months it has not submitted its statement before the court. From 2017 to 2020, affected farmers protested on several occasions at Srinagar and Budgam, but nobody paid attention to them. Unfortunately, the national media which is highlighting the farmer agitation these days filed not a single report about these farmers.

FURTHER ALIENATION

Several commitments were made to the people of J&K after the abrogation of Article 370 on the floor of Parliament. The Prime Minister, Home Minister and other leaders of the Bharatiya Janata Party said that the extension of the central laws to J&K would confer upon its people benefits, such as under the flagship programmes. Unfortunately, the practice of depriving people of their rights persists in the new Union Territories, which can only mean further alienation of the region.

The Forest Rights Act (FRA), 2006, was not rolled out until people protested. Instead, forest-dwellers were issued eviction notices and their properties and apple orchards damaged. Similarly, the Prevention of Atrocities Act, 1989, is not being rolled out in J&K and with respect to the Right to Fair Compensation Act, 2013, the government is engaging in legal deceptions by invoking an 87-year-old repealed and outdated law that applied to the erstwhile state, which is depriving marginal farmers of Kashmir their rights.

Is it not a denial of justice that the farmers of J&K are being made to accept compensation for fruit trees at a rate that was applicable more than 26 years ago? In 2017, the National Highway Authority of India (NHAI) had said in a communication to the J&K government that it had no objection to paying compensation according to the central Land Acquisition Act if that law was adopted by the J&K government. But ever since this law was automatically extended to J&K after the abrogation of special status, the NHAI is not uttering a word. How can they, when there is no political will in the government to come to the aid of these farmers?

(Raja Muzaffar Bhat is a Srinagar-based activist, columnist, and independent researcher. The views are personal.)